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T13.9: Planning Conditions and Obligations

Planning conditions and Planning and Transport Obligations can be used to ensure the timely delivered of transport infrastructure and other necessary measures. This is especially important for large scale developments because of the greater impacts on and need for infrastructure.

Planning conditions, where clearly justified and in accordance with the NPPF and Circular 11/95 may be used to require on-site transport measures and facilities as part of a development, typically covering:

Safe pedestrian and cycle routes.

Provision of cycle facilities.

Provision of facilities for public transport, such as bus stops and lay-bys.

The management and use of parking spaces including size and number, priority is given to certain categories of people, e.g. mobility impaired people, people with children, visitors, or cars with more than one occupant.

The provision of information to staff and visitors about public transport, walking and cycling to the site, including information for mobility impaired people – and wider packages of measures constituted as Travel Plans and sustainable transport packages.

Arrangements for deliveries to the site and removals from the site, covering specification of types of vehicles and hours of operation, design of delivery areas and specifications for lorry parking and turning spaces.

New or improved junction and road layouts.

Submission of further design information or documents, such as briefs or codes, which set out how to secure the principles of the masterplan.

Grampian conditions postpone the implementation of otherwise permitted development until a certain measure has been taken, such as provision of a piece of infrastructure. They can be used even where land is not in the ownership of the applicant, providing they are worded negatively. (i.e. it is unreasonable to impose conditions requiring that work be done which relies on third parties or consents beyond the control of the developer). However, for a Grampian condition to be applied there must be a reasonable prospect that the works required by the condition can be delivered within the timescale of the permission granted.

Planning obligations in the form of a Section 106 agreement can be used to secure a particular facility needed as a result of the development, and which cannot be secured via a planning condition. A S106 contribution could, for example, require either a capital contribution, or the provision of land and capital funding for the construction of the infrastructure in question. In doing this, the tests of The Community Infrastructure Levy (CIL) Regulation 122 must be met so that the planning obligation is: (i.) necessary to make the development acceptable; (ii.) directly related to the development; and (iii.) fairly and reasonably related in scale and kind. In determining whether each infrastructure item meets the tests and the scale of the contribution, robust evidence should be used.

In relation to transport and movement, examples include: improvements to public transport, walking and cycling, where such measures would be likely to influence travel patterns to the site involved, either on their own or as part of a package of measures. Examples could include improvements to a bus service or cycle route which goes near to the site, or pedestrian improvements which make it easier and safer to walk to the site from other developments or from public transport.

To date, a number of highway authorities have developed transport related tariffs. However, CIL will become the mechanism for the collection of more general contributions which do not have a close relationship to the application site. Consequently from 6th April 2014 or on the date that a charging authority’s first charging schedule takes effect, whichever is earlier, local planning authorities will no longer be able to seek more than five planning obligation contributions towards a single project/item of infrastructure that could be funded by CIL. Other transport related obligations include:

Section 38 Agreements /Advanced Payments Code (Highways Act 1980): Councils may operate an Advanced Payments Code, whereby developers are required to deposit, with the Council, the full cost estimated to construct the access to the nearest public highway, to adoptable standards. This may not be required where developers enter into a Section 38 Agreement with the Council. Section 38 Agreements are typically required to be supported by a guaranteed Bond, to cover the full cost of the works required to construct the roads to adoptable standard. Councils often also require a Development Road Fee based on a percentage of the Bond, to cover the cost of checking drawings, inspections and testing. Full title to all land to be dedicated is required to be submitted and checked before such an Agreement can be completed. In this context, typically works cannot commence on site until either the APC sum has been deposited or the Section 38 Agreement signed.

Section 278 Agreements (Highways Act 1980): Where it has been agreed that there are some road improvement works that can be carried out to overcome the highway objections to a development, developers are often required or requested to enter into a Section 278 Agreement with the Highway Authority. Under such Agreements, the developer is often advised that the Council reserve the right to carry out the design of all such schemes, making a charge, based on a percentage of the cost of the works. Typically, a charge is also made for supervision / inspection and testing of the works. Typically, the developer will appoint the contractor (subject to the Council’s approval) and pay all the cost of the necessary works. Typically, the developer shall also be responsible for any claims, under the Land Compensation Act, which can be made up-to 7 years after the works have been completed.